9911796707
TMI Blog2021 (6) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... y, both drawn on AXIS Bank by the petitioners herein towards repayment of legally enforceable debt to respondent No.2 herein. In the list of documents, respondent No.2 has specifically mentioned about the said cheques and also other documents. 4. On complying with the procedure laid down under Section - 200 of the Code, the learned Magistrate has taken cognizance of the offence under Section - 138 of the Act, 1881 against the petitioners herein and others. A perusal of the Photostat copies of the certified copies of the complaint would reveal that respondent No.2 has filed the said fifteen (15) documents in original along with complaint and he has received all the original documents on 19.06.2012. After verification of original documents with the Photostat copies thereof, according to respondent No.2, when complaints filed under Section - 200 of the Code, learned Magistrates are insisting to file the original documents along with complaint, and after verification of original documents with the Photostat copies, learned Magistrates are returning the said originals for safe custody and permitting the complainants to file originals at the time of marking of documents. According to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 11.02.2020 by relying upon the principle laid down by the Apex Court and the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh in Krishnapatnam Port Co. Ltd., Hyderabad v. Cargill India Pvt. Ltd., New Delhi 2018 (5) ALD 13 (DB). 8. Feeling aggrieved by the said order, the petitioners herein filed the present petition under Section - 482 of the Code to quash the same. SUBMISSIONS OF THE PETITIONERS: 9. Mr. A. Tulsi Raj Gokul, learned counsel for the petitioners, by referring to the principle laid down by the Apex Court in Rakesh Mohindra v. Anita Beri (2016) 16 SCC 483 and other judgments, would submit that respondent No.2 failed to lay a factual foundation with regard to its contention that the documents were misplaced. According to him, respondent No.2 has not even filed any affidavit before the Court below and also before this Court. They have also not lodged any complaint with police concerned with regard to the said misplacement of original documents. Respondent No.2 has filed the application under Section - 65 (C) of the Act, 1872 in a casual and routine manner without laying factual foundation. The amount involved under the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection - 200 of the Code for the offence under Section - 138 of the Act, 1881 against the petitioners herein and others and it is also not in dispute that respondent No.2 herein has filed original documents as mentioned in the list of documents appended to the complaint. In the Photostat copy of the certified copy of the said complaint, it is specifically mentioned that the original documents filed in the Court along with complaint returned to respondent No.2 herein on 19.06.2012. A perusal of the cause title of the complaint would reveal that this Court vide order dated 11.09.2018 in Crl.P. Nos.626 and 4279 of 2013, quashed the proceedings against accused Nos.4, 5 and 7 in C.C. No.5 of 2019. 12. Respondent No.2 has filed an application under Section - 65 (C) of the Act, 1872, specifically contending that it has filed original documents along with complaint and after verification, the said documents were returned to it on giving an undertaking to produce the same at the time of trial. The said documents were misplaced in the office of respondent No.2, and despite best efforts, it could not trace out the said documents and, therefore, sought permission of the Court below to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that the notice under Section 66 of the Act is necessary when the original is shown to be in possession of the person against whom the document is sought to be proved or is in possession of any person out of reach or not subject to the process of the Court or of any person who is legally bound to produce it. In order to seek dispensation of notice under Section 66 of the Act, the respondent should succeed in proving that the original document is in his own possession and is not in possession of a person against whom it is sought to be proved or is not in possession of any person out of reach or not subject to the process of the Court or any person legally bound to produce it. The documents, sought to be admitted in this case are of different categories. The table contains the list of 32 documents. The first document is the purchase order placed by the plaintiff on Cargill International S.A., Geneva, a copy of which can be expected to be available with the respondent. So also the documents at Sl.Nos.3, 5, 6, 7, 10 and 13. Items 2, 4, 8, 9, 11, 12, 14 to 21, 24, 25, 29 are the documents for which also copies can be expected to be available with the petitioner. Items 22, 23, 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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